TaxTMI 
TaxTMI 
2022 (6) TMI 990
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....y Partnership Act 2008 with Government of India Ministry of Corporate Affairs having its registered office at D.S.C.- 319 DLF South Court Saket New Delhi 110017. As per the pleadings set forth in the petition one Moser Baer India Private Ltd. (hereinafter referred as Corporate Debtor) was allotted a commercial plot no. 66 admeasuring 2,70,201 square meters at Udyog Vihar Greater NOIDA, District Gautam Budh Nagar by the respondent no. 2 Greater NOIDA Industrial Development Authority (hereinafter referred as GNIDA) for a period 90 years. Record further reveals that initially the lease deed was executed on 26.06.2001 between GNIDA on one part and Corporate Debtor on the other part setting out the terms and the conditions (covenants) of the leased land in question. It is further pleaded in the petition that an application purported to be u/ s 7 of the Insolvency and Bankruptcy Code 2016 (hereinafter referred to as IBC Code) was instituted by a Financial Creditor being M/s Alchemist Assets Reconstruction Company Limited bearing no. I.B.378 (P.B.) 2017 for initiating Insolvency Resolution Process against Carporate Debtor. The said application was admitted on 14.11.2017 by National Compan....
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....im so, the auction proceedings were concluded and the same was also confirmed by NCLT hence the request so acceded by the GNIDA cannot be accepted. It has been further averred in para 14 of the writ petition that the petitioner wanted to start with its project and thus under extreme pressure of the GNIDA, the petitioner deposited the arrears of lease rent and interest thereon beng Rs. 5,80,28,025/- for issuance of Transfer Memorandum on 27.10.2020 under protest. In support of the said contention petitioner has appended as annexure- 10 a letter sent by it addressed to GNIDA which is being termed as protest letter along with details of the deposits so sought to be made by it. 4. According to the petitioner finally the Transfer Memorandum was issued by GNIDA on 24.12.2020, a copy whereof has been appended at page 79 of the writ petition. 5. Lamenting quiescent demeanor in non refund of the amount which has been deposited under protest the petitoner is before this court by means of the present writ petiton seeking following reliefs:- "I. issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 to refund the amount of Rs. 5,80,28,025/- alo....
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....nsfer the plot in the name of the petitioner company by issuing the transfer memorandum dated 24.12.2020. 11 conditions have been given in the transfer memorandum. 15. That the contents of para 16, 17, 18, 19 and 20 of the writpetition are not admitted hence specifically denied. The M/s Moser Baer shojld have taken prior permission from the Greater Noida Authority and they should have informed that the company has becomebankrupt and they are going to insolvency. Since the petitioner company purchased the plot should have also inquire from the Authority what are the dues are pending agianst the plot. Since the petitioner compay has entered in the shoes of M/s Moser Baer, hence they have to clear all the deus. It is specifically denied that petitioner is not entitle for any refund of the amount of Rs. 5,80,33,025/-." 7. In nutshell, the stand taken by the GNIDA in their counter affidavit is that GNIDA was at no point of time apprised of the fact that Corporate Debtor lessee became bankrupt and proceedings were drawn under IBC Code- 2016 against it culminating into auction of the demised land and transfer of the same, therefore, auction in favour of the petitioner is illeg....
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.........................aged.................Years.................. ........ S/o.........................................................R/ o.......................... hereinafter called the lessee which expression shall unless the context does not admit, include his/her/their/it's heirs, executors, administrators, representatives and permitted assigns/it's successors and permitted assigns of the other part. A. Partnership Firm /Proprietorship Firm/Company functioning in the name of M/s. Moser Baer Indi Ltd.- Having its Registered Office Situated at 63, Ring Rutid. Through its Director Sri N.K. Chaudhary aged.48 years S/O Sri Raj Mangal Chaudhary I-11 Sector 27 Noida he reinafter called the lessee which expression shall, unless the context does not admit, include his/he:/their/it's heirs, executors, administrators, representatives and permitted assigns/it's successors and permitted assigns) of the other part. II (a)......... Provided that the interest shall be computed at the rate mentioned above on the total amount of the balance outstanding from time to time from the date of allotment and shall be payable half yearly (As per payment plan enclosed with allotme....
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.... provisions and agreements herein contained. IV. AND IT IS HEREBY FURTHER AGREED AND DECLARED BY AND BETWEEN THE PARTIES TO THESE PRESENTS AS FOLLOWS (A) Upon the happening of any one or more of the under mentioned contingencies. (a) If the lessee or any other person(s) claiming through or under suchlessee commits breach of any of the covenants or conditions contained in this Deed and such breach is not remedied following receipt of a written notice from the lessor specifying the nature of breach and providing the lessee reasonable opportunity to remedy the breach: (b) If the lessee or any other person(s) claiming through or under suchlessee fails and/or neglects to observe punctuality and/or perform any of their/its/his/her obligations stipulated under this Deed: (c) If the lessee or any other person(s) claiming through or under suchlessee whether actually or purportedly transfers, creates, alienates, extinguishes, relinquishes, mortgages or assigns the whole or any part of his right, title or interest whether in whole or any part thereof, except in the manner stipulated in this Lease Deed. (3) (a) That the Lessor and the Lessee hereby agree that all sums due und....
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....nditions of the earlier Lease Deeds executed between the Transferor and the Greater Noida specifically the original lease deeds in respect of the said property and the supplementary lease deed dated 28th November 2007 subject to the changes mentioned in the transfer memorandum and otherwise from time to time. 11. That if the Transferee does not abide by the terms and conditions of allotment/leases and building regulation and direction or any other rules framedby the authority, the lease may be cancelled by the GNIDA and possession of the demised premises may be taken over by the GNIDA and the Transfereein such an event will not be entitled to claim any compensation in respect thereof. ARGUMENT OF PETITIONER 12. Sri Navin Sinha, learned Senior Counsel assisted by Sri Manu Khare, learned counsels for the petitioner have made manifolds submissions namely:- (a). The petitioner being a bonafide auction purchaser, purchased immovable asscets consequent to the auction/sale held in pursuance of the orders of NCLT after paying the bid amount cannot be fastened with any monetory liability which was attached with Corporare Debtor under Liquidation. (b). Once under t....
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.... in the Certificate of Sale dated 11.09.2019 being "AS IS WHERE IS", "AS IS WHAT IS", "WHATEVER THERE IS" AND "NO RECOURSE" cannot be stretched so far as to include within its encompass a situation that the petitioner is liable to pay past dues of the company in liquidation. According to the learned Senior Counsel who appears for the petitioner harmonious interpretation is to be given so as to give literal meaning while personifying that only those dues which are legal and payable, are to be included and not those dues and liabilities which are not to be paid or discharged particularly when there was latent and patent defects in the property which is being put to auction and the liabilies so attached to it, was at no point of time apprised or confornted to the petitioner who is a bonafide auction purchaser. Learned Senior Counsel in support of the said submission has relied upon the following judgments:- "1. Al Champdandy Industries Limited vs. Official Liquidator and Another reported in (2009) 4 SCC 486 2. Rana Girders Limited vs. Union of India and Others reported in(2013) 10 SCC 746 3. Haryana State Electricity Board vs. Hanuman Rice Mills Dhanauriand ....
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....t case relates to auction of an immovable property being a lease land of which the GNIDA is the lessor then without there being any communication about the bankruptcy of the Creditor Debtor and the fact that insolvency proceeding got initiated culminating into passing of an order of 20.09.2018, the GNIDA is not only necessary party but also has substantial interest therein as according to the term and covenant contained in the lease deed not only the lease rentals has to be paid but also in case of subletting or assigning of the lease in favor of the third person concurrence and approval of GNIDA is/was necessary. Sri Singh in order to buttress his contention has sought to argue that the petitioner being auction purchaser and claiming interest over the lease land premises is liable to make the payment of the past lease rentals and interest of late payment and also honour the commitments so engrafted in the lease deed and Transfer Memorandum and petitioner cannot wriggle out from the contractual obligation and the dues so attached with the lease deed as the petitioner herein has stepped into the shoes of Corporate Debtor. It has been further argued that contractual obligation cannot....
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....chaser of lease hold rights of the disputed plot, has protection under the IBC from payment of lease rent and other dues attached to the property, particularly when the right of the liquidated company in the disputed property was purchased by the petitioner on "AS IS WHERE IS", "AS IS WHAT IS", "WHATEVER THERE IS", AND "NO RECOURSE" basis?" SYMPOSIUM 20. We have heard the submissions of learned counsel for the parties and perused the record. 21. Undisputedly, the petitioner herein is an auction purchaser who had purchased the lease hold rights of the Creditor Debtor through public bidding pursuant to a judicial order passed by NCLT in liquidation proceedings purported to be under IBC Code-2016. It is further not in dispute that GNIDA is the lessor and Creditor Debtor is/ was a lessee. None of the parties have disputed the fact that the Creditor Debtor was in-dues with respect to lease rentals which also exposed it to penal interest. The only question which is to be decided in the present proceeding is as to whether the petitioner being the auction purchaser is liable to pay the arrears of rentals and interest thereon from a date anterior to the acceptance and confirming of....
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....compasses to it the legal heirs, assignee, representative etc and the land being the lease land can only be transferred with prior permission to be accorded by the lessor for transfer. Nonetheless, by virtue of the lease deed the lessee is under obligation to pay the unpaid rentals and in case of delay the lessee gets automatically exposed to penal interest. Learned counsel for the parties have not disputed the fact that the lease deed dated 26.06.2001 executed between GNIDA and Corporate Debtor is in existence though subsequently other lease deeds were executed on 22.03.2002, 05.09.2002 and supplementary lease deed on 28.11.2007 wherein the terms and the conditions so mentioned in the lease deed dated 26.06.2001 stood intact and applicable. 26. Now the question arises how the words "AS IS WHERE IS", "AS IS WHAT IS", "WHATEVER THERE IS", AND "NO RECOURSE" as stipulated in certificate of sale issued by Liquidator on 11.09.2019 is to be interpreted. It is further not in dispute that the petitioner itself approached the GNIDA for grant of Transfer Memorandum and when the GNIDA insisted for payment of past rentals and interest thereon the same was paid by the petitioner under protes....
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...., that when possession of the allotted site is not delivered within the stipulated period, the delay may amount to a deficiency or denial of service, and that any claim in regard to such delay is not in regard to the immovable property but in regard to the deficiency in rendering service of a particular standard, quality or grade. The activity of a developer, that is development of land into layout of sites, inviting applications for allotment by assuring formation of a lay out with amenities and delivery of the allotted sites within a stipulated time at a particular price, is completely different from the auction of existing sites either on sale or lease. In a scheme for development and allotment, the allottee has no choice of the site allotted. He has no choice in regard to the price to be paid. The development authority decides which site should be allotted to him. The development authority fixes the uniform price with reference to the size of plots. In most development schemes, the applications are invited and allotments are made long before the actual development of the lay out or formation of sites. Further the development scheme casts an obligation on the development authori....
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.... to the above mentioned conditions. Evidently, the commercial plots were allotted on "as is where is" basis. The allottees would have ascertained the facilities available at the time of auction and after having accepted the commercial plots on "as is where is" basis, they cannot be heard to contend that PUDA had not provided the basic amenities like parking, lights, roads, water, sewerage etc. If the allottees were not interested in taking the commercial plots on "as is where is" basis, they should not have accepted the allotment and after having accepted the allotment on "as is where is" basis, they are estopped from contending that the basic amenities like parking, lights, roads, water, sewerage etc. were not provided by PUDA when the plots were allotted. Over and above, the facts would clearly indicate that there was not much delay on the part of PUDA to provide those facilities as well. As noted, the electrical works and health works were completed by 24.12.2002 and 22.11.2002 respectively and all the facilities like parking, lights, roads, water, sewerage etc. were also provided." 30. Yet in the case of Rajasthan State Industrial Development And Investment Corporation And A....
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....re discover. This is, however, subject to the presence of contract to contrary between the parties. 34. Now, another facet needs to be examined as to what are the types of defects which a buyer is expected to inquire into before purchasing the property. There are two types of defects namely latent defects and patent defects. Latent defects are such type of defects which are unlikely to be discovered by a purchaser during investigation. On the other hand, the second category is patent defects which are discoverable if the buyer would have carried out inspection. Here in the present case the defects falls under the second category, being patent defects as Court finds that on 24.09.2018 the public announcement was made by Liquidator inviting claims due from the Corporate Debtor wherein in item no. 5 the details of the demised premises in question was given. Further the sale notice for assets of the Corporate Debtor was also published which is annexure- 4 at page no. 45 wherein again description of the land was given. It is a matter of common knowledge that whenever a property is being sought to be sold through auction and the reserve price runs into crores of rupees (which in the p....
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....of the Transfer Memorandum dated 24.12.2020. Moreover, clause 4 of the sale certificate dated 30.07.2021 which is internal page 4 shows that after execution of the transfer memorandum dated 24.12.2020 the transferee being the corporate debtor has assured and undertaken that the demise premises in question is free from all encumbrance meaning thereby that even in fact the liabilities and the obligation so contained in the lease deed dated 26.06.2021 followed by subsequent lease deed so executed there on between the GNIDA and the Corporate Debtor was accepted by the petitioner while undertaking to comply with the terms and conditions and the obligations set out therein and the same became the basis of the sale certificate. 36. This Court finds that the words so employed in the sale certificate being "AS IS WHERE IS", "AS IS WHAT IS", "WHATEVER THERE IS" AND "NO RECOURSE" are to be interpreted in such a manner so as to give with a logical conclusion in the light of the instrument so executed between the parties while bounding the petitioner to clear the unpaid arrears of lease rentals as well as interest on delayed payment. 37. Answering to the question no. (iv) this Court has t....
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....in 1994 (1) SCC 575 had the occasion to consider the aspect relating to the guarantee or warranty of the official liquidator with regard to the title and encumbrances of the immovable property which are put to auction. The Hon'ble Apex Court in paragraph no. 14 has held as under:- "14.When the Official Liquidator sells the property and assets of a companyin liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proceed upon the basis of what the records of the company in liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property. The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself. There is, therefore, no merit in the application made on beha....
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....iled the application in the Company Petition requesting the Company Judge to declare the Cancellation Order passed by the Corporation to be valid and direct the O.L. not to interfere with its paper possession. The Company Judge rejected the said application keeping in view the language employed in Section 537 of the Companies Act. The Corporation filed appeal which came to be dismissed by the Division Bench. The Division Bench was not impressed with the arguments that the Corporation was not aware of the winding up proceedings and for this reason it had resumed the possession of the industrial plot, after cancellation thereof, without obtaining the leave of the Court. Once the plea of ignorance was denounced, the court addressed the question as to whether the Corporation could have cancelled the allotment of industrial plot made in favour of the Company in liquidation and answered the same in the negative with the following observations:- "11. Now the only question before us is, whether after an order was made by this Court in winding up the respondent Company (Company in liquidation), the applicant Corporation could have ventured to cancel the allotment of industrial plot....
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..... We are of the opinion that the observations are to be read giving restricted meaning that possession could not be taken without the prior leave of the court. It may not be correct to hold that the law requires that prior permission of the Company Judge is mandated even for cancellation of the lease. In fact, question of resumption of land or taking possession thereof could have arisen only after the cancellation of the lease. We will dilate on this aspect further after discussing the judgment in M/s. Hanuman Silks10. 34. In M/s. Hanuman Silks v. Karnataka Industrial AreasDevelopment Board, AIR 1997 Kar 134 the said Company was allotted plots by the Board for which lease-cum-sale agreements were entered into on 18.8.1993 and 19.8.1993. The Company was to erect the factory within 12 months and to commence the production within 24 months (same conditions as in the instant case). The Company failed to commence the civil construction work and did not complete the construction nor commenced production by these stipulated dates. Show cause notices were given by the Board and after that the plots allotted to the Company were resumed on 25.7.1995. The Company filed the petitions ....
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.... in liquidation. Thereafter, we have to understand the implication of the provisions of Section 537, which reads as under: "537. Avoidance of certain attachments, executions, etc., in winding up by Tribunal. (i) Where any Company is being wound up by Tribunal- (a) any attachment, distress or execution put inforce, without leave of the Tribunal against the estate or effects of the Company, after the commencement of the winding up; or (b) any sale held, without leave of the Tribunal ofany of the properties or effects of the Company after such commencement shall be void. (2) Nothing in this Section applies to any proceedings for the recovery of any tax or impost or any dues payable to the Government. 38. It is clear from the above that prior permission of the Court isrequired in respect of any attachment, distress or execution put in force or for sale of the properties or effects of the Company. We are of the opinion that the serving of cancellation notice simplicitor would not come within the mischief of this section as that by itself does not amount to attachment, distress or execution etc. No doubt, after the commencement of the....
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....over it. Moreover, neither the appellant-Bank is a lessee of the land in question nor any lease has ever been sanctioned by the Govt, of U.P. in its favour. Hence, the appellant is not entitled to get any right or to keep possession of the properties in question situated at 19, Clive Road and 10, Edmoston Road." 43. Applying the above judgments in the facts of the present case an inescapable conclusion stands drawn that lessor has a paramount interest over the property so sought to be leased to the lessee as there is a marked difference between leasehold and freehold as in the case of former only possession is transferred and not the ownership or title, however, in the later ownership and possession stands transferred. 44. Recently in the case of Delhi Development Authority Vs. Karam Department of Finance Investment (India) Private Limited and Others reported in 2020 (4) SCC 136 the Hon'ble Apex Court in paragraph no. 13, 14, 15, 16, 20, 21, 22, 23, 24 and 25 has observed as under:- "13. In Perpetual Lease, granted to Shri Trilochan Singh Rana and Mrs. Rani Rana, one of the conditions provided that lessor may impose conditions to claim and recover a portion of the un....
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....n application to the DDA for grant of freehold rights and also deposited amount of Rs.3,45,729/-. While processing the application for conversion of leasehold rights to free hold rights, DDA made a demand of Rs.1,43,90,348/- towards unearned increase, which was challenged by the writ petitioner. Whether writ petitioner was liable to pay unearned increase payment is the question to be answered. 16. We have already noticed the clause (4)(a) of the PerpetualLease Deed dated 18.03.1970, which provided that in event sanction is given by lessor to the lessee for sale, transfer or assignment, lessor shall be entitled to claim and recover a portion of the unearned increase in the value. The unearned increase being the difference between the premium paid and the market value. The object behind the said clause was that a lessee when is permitted to transfer the leasehold rights, the lessor should not be deprived of the difference between the premium paid and the market value. The clause was inserted in the Perpetual Lease to compensate the lessor. The present is not a case where lessee is making any transfer or seeking any permission from the lessor to give his consent. 20.....
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....ence is made to judgment of this Court in Sahebzada Mohammad Kamgarh Shah Vs. Jagdish Chandra Deo Dhabal Deb and Others, AIR 1960 SC 953. In Paragraph Nos. 12 and 13, following was laid down:- "12. In his attempt to establish that by this later lease the lessor granted a lease even of these minerals which had been excluded specifically by Clause 16 of the earlier lease, Mr Jha has arrayed in his several well established principles of construction. The first of these is that the intention of the parties to a document of grant must be ascertained first and foremost from the words used in the disposition clause, understanding the words used in their strict, natural grammatical sense and that once the intention can be clearly understood from the words in the disposition clause thus interpreted it is no business of the courts to examine what the parties may have said in other portions of the document. Next it is urged that if it does appear that the later clauses of the document purport to restrict or cut down in any way the effect of the earlier clause disposing of property the earlier clause must prevail. Thirdly it is said that if there be any ambiguity in the disposition cl....
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.... indicate that details of four properties were given in the auction notice. It is useful to look into the details given as follows:- Details of Properties Reserve Price 1. Property No. B-6, Friends Colony Mathura Road, New Delhi. This is a lease hold residential plot measuring 195.097 sq. Mt. together with buildings and structure thereon and fixtures and fitting therein 34.20 lacs 2. Property No. 14, Block A-2, Safdarjung Development Area, New Delhi. 1.08 crores This is a lease hold residential plot measuring (725 sq. yds.) with a double storeyed building. The Ground Floor consists of drawing dining bed room, kitchen and a garage. The First Floor consists of 3 bed rooms, 3 bath rooms, store and a lobby over the garage. There are 2 floors each having a servant room W.O. and a cocking verandah. 3. Property No. A-8/23, Vasant Vihar, New Delhi. 36.60 Lacs This is a lease hold residential plot N. 23 in Street No. A8 in the lay out plan of Vasant Vihar of the Servants Cooperative. House Building Society Ltd., and measuring 150 Sq. yds alongwith the super structure build thereon. (Covered area 1350 Sq. Ft). ....
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.... dated 29.09.1988 between Trilochan Singh Rana and Mrs. Rani Rana to M/s. Ocean Construction Industries Pvt. Ltd. Trilochan Singh Rana and Mrs. Rani Rana were only lease holders. Thus, they could best transfer their right, which was conferred to them by the Indenture dated 18.03.1970." 45. Another aspect which needs to be considered is with respect to the fact that whether the claim so set up by the GNIDA can be negated on the ground that it had not lodged and got registered its claim in the proceeding under IBC Code. It has come on record that GNIDA did not get registered its claims in the proceedings purported to be under IBC Code-2016, however, this Court finds that merely because the claim has not been registered by GNIDA under IBC Code cannot be a ground to negate their claim particularly when the demised premises in question is leasehold and one of the condition for recognizing the petitioner being an auction purchaser as a lessee is making good the deficiency in the payment of lease rentals along with interest thereon. Learned Senior Counsel could not point out any of the provisions so as to fortify the legal submission that mere nonregistration of the claim before the co....
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....cumbrance." 50. Learned Senior Counsel in support of the argument relatable to the question nos. (ii) and (iv) had relied upon the judgment in the case of A.I. Champdany (supra) so as to contend that the petitioner is not liable to pay lease rentals and interest thereon despite the stipulation contained "AS IS WHERE IS", "AS IS WHAT IS", "WHATEVER THERE IS" AND "NO RECOURSE". The said judgment is not of any aid or help as the said judgment relates to dues of the municipality which the Hon'ble Apex Court found not having charge over the property put to auction as even otherwise it did not come within the purview of the Crown Debt. The Hon'ble Apex Court in paragraph no. 27, 29 has observed as under:- "27. Once the property is sold, the assets of the company are required to be distributed to the creditors in order of preference. As the respondent- Municipality was not a secured creditor, the impugned Judgment cannot be sustained. 29. Dues of the Municipality would also not even otherwise come within the purview of the crown debt. Even a crown debt could be discharged only after the secured creditors stand discharged. " 51. Sri Sinha next relied upon the judgme....
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....arge upon the property put to auction. 53. The next judgment as sought to be relied to and referred to by the learned Senior Counsel who appears for the petitioner is the case of Haryana State Electricity Board Vs. (supra) The said judgment is also of no assistance to the petitioner in view of the fact that the Hon'ble Apex Court had held that electricity arrears do not constitute a charge over the property and that is why a transferee of the premise cannot be made liable for payment of dues of the previous owner/occupier. The relevant extract of the judgment in paragraph nos. 10, 11, 12, 13 are quoted hereinunder:- "10. The appellant relies on the subsequent decision of this court in Paramount Polymers (supra) to distinguish the decision in Isha Marbles. In Paramount Polymers (supra), the terms and conditions of supply contained a provision (clause 21A) providing that reconnection or new connection shall not be given to any premises where there are arrears on any account, unless the arrears are cleared. In view of the said express provision, this Court distinguished Isha Marbles on the following reasoning: "15...This Court in Hyderabad Vanaspati Ltd. v. A.P. S....
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....question of correctness or otherwise of the decision in Isha Marbles (supra) therefore does not arise in this case especially in view of the fact that the High Court has not considered the question whether Clause 21A of the terms and conditions incorporated is invalid for any reason." 11. In Paschimanchal Vidyut Vitran Nigam Ltd. v. DVS Steels & Alloys Pvt.Ltd. [2009 (1) SCC 210] this court held, while reiterating the principle that the electricity dues did not constitute a charge on the premises, that where the applicable rules requires such payment, the same will be binding on the purchaser. This court held: "11...A transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor in title or possession, as the amount payable towards supply of electricity does not constitute a `charge' on the premises. A purchaser of a premises, cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises.... 12....When the purchaser of a premises approaches the distributor seeking a....
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....t plead in its defence that anystatutory rule or terms and conditions of supply, authorized it to demand the dues of previous owner, from the first respondent. Though the appellant contended in the written statement that the dues of Durga Rice Mills were transferred to the account of the first respondent, the appellant did not specify the statutory provision which enabled it to make such a claim. The decision in Paramount Polymers shows that such an enabling term was introduced in the terms and conditions of electricity supply in Haryana, only in the year 2001." 54. Another judgment so cited is the case of Shreyas Papers (P) Ltd. (supra), however, the said judgment is of no help to the petitioner as in the said case there was only transfer of individual assets of the defaulting company rather than the defaulting company being sold as a going concern and the Hon'ble Apex Court while interpreting Section 15 (1) of the Karnataka Sales Tax Act (1957) in paragraph nos. 17 and 22 observed as under:- "17. In the present case, since it is not a matter of dispute that there was only the transfer of individual assets of the Defaulting Company, rather than the Defaulting Company b....
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....view, there is a clear judicial thinking which emerges, which needs to be emphasized: 16.1 . That electricity dues, where they are statutory incharacter under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual nature. 16.2 . Where, as in cases of the E-auction notice in question,the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is on "AS IS WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS", there can be no doubt that the liability to pay electricity dues exists on the respondent (purchaser)." 56. Perusal of the above noted paragraphs itself shows that the Hon'ble Apex Court has held that electricity dues are statutory in nature and as per terms and the condition of supply the same cannot be waved of. Infact the said judgment goes against the petitioner. 57. The next judgment cited is the case of Raman Roadways....
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....ce of contractual obligation while playing hot and cold at the same time. 61. The Hon'ble Apex Court in the case of R.N. Gosain vs. Yashpal Dhir reported in (1992) 4 SCC 683 has observed as under:- "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid any thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". [See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., (1921) 2 R.B. 608, at p.612, Scrutton, L.J]. According to Halsbury's Laws of England, 4th Edn.,Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside". (para 1508)." 62. The Hon'ble Apex Court in the case of Shyam Telelink Limited vs. Union of India, reported in (2010) 10 SCC 165 has observed as under: "23. The maxim qui a....
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.... palpably evident that the Plaintiff/Tenant in O.S.5/78 feared dispossession from the demised premises because of what they considered to be an illegal transfer; but since all the Defendants had averred in their Written Statement that they had no intention of doing so, the suit ought not to have been dismissed but ought to have been decreed without more ado solely so far as the prayer of injunction was concerned. But, in the Trial Court the title to the leased land had become the fulcrum of the fight, owing to the pleadings of the Tenant in which it had repeatedly and steadfastly challenged the title of the Trust as well as the Transferees. The Tenant should not be permitted to approbate and reprobate, as per its whim or convenience, by disowning or abandoning a controversy it has sought to have adjudicated." 65. Proposition of law as culled out by the Hon'ble Supreme Court in the above noted decisions draws irresistible conclusion that a party cannot approbate and reprobate at the same time as once it becomes beneficiaries of certain documents/instruments then the said party cannot elect to honor the commitments of certain parts which are beneficial to it and wriggle out of tho....
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....a beneficiary of a transfer is bound to honor the contractual obligation as contained in the Transfer Memorandum. 68. Admittedly, the petitioner is seeking refunds of certain amount which he claims to have deposited under protest for discharge the contractual obligation. Now the question arises as to whether this Court can in exercise of the jurisdiction under Article 226 of the Constitution of India by virtue of judicial fiat grant relief to the petitioner which tantamount to resiling and wriggling away from a contractual obligation. 69. The Hon'ble Apex Court in the case of Har Shankar and Others vs. The Dy. Excise and Taxation Commercial and Others reported in 1975 (1) SCC 737 in paragraph no. 22 observed as under:- "The writ jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred." 70. In the Case of M/s Radhakrishna Agarwal and Others vs. State of Bihar and Others reported in 1 977 (3) SCC 457 in paragraph nos. 12, 13, 14 and 15 observed as under:- "12. The Patna High Court had, very rightly divided the types of cases 'in which breaches of alleged obligation by ....
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....placed in the third category where questions of pure alleged breaches of contract are involved. It held, upon the strength of Umakant Saran v. The State of Bihar;(7) and Lekhrai Sathram Das v.N.M. Shah;(8) and B.K. Sinha v. State of Bihar(9) that no writ order can issue under Article 226 of the Constitution in such cases "to compel the authorities to remedy are a breach of contract pure and simple"." 71. The Hon'ble Apex Court in Premji Bhai Parmar and Others vs. Delhi Development Authority and Others reported in 1980 (2) SCC 129 in paragraph no. 8 observed as under:- "8. Though we are not inclined to reject the petitions on this preliminary objection as we have heard them on merits it is undeniable that camouflage of Art. 14 cannot conceal the real purpose motivating these petitions, namely, to get back a part of the purchase price of flats paid by the petitioners with wide open eyes after flats have been securely obtained and petition to this Court under Art. 32 is not a proper remedy nor is this Court a proper forum for re-opening the concluded contracts with a view to getting back a part of the purchase price paid and the benefit taken. The undisputed facts are that....
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....collected surcharge as component of price which the Authority was not authorised or entitled to collect. Even if there may be any merit in this contention, though there is none, such a relief of refund cannot be the subject-matter of a petition under Art. 32. And Art. 14 cannot camouflage the real bone of contention. Conceding for this submission that the Authority has the trappings of a State or would be comprehended in 'other authority' for the purpose of Art. 12, while determining price of flats constructed by it, it acts purely in its executive capacity and "is bound by the obligations which dealings of the State with the individual citizens import into every transacting entered into the exercise of its constitutional powers But after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the Constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Art. 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only cl....
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....ly true that High Court can entertain in its extraordinary jurisdiction a petition to issue any of the prerogative writs for any other purpose. But such writ can be issued where there is executive action unsupported by law or even in respect of a Corporation where there is a denial of equality before law or equal protection of law. The Corporation can also file a writ petition for enforcement of a right under a statute. As pointed out earlier, the respondent (Company) was merely trying to enforce a contractual obligation. To clear the ground let it be stated that obligation to pay royalty for timber cut and felled and removed is prescribed by the relevant regulations. The validity of regulations is not challenged. Therefore, the demand for royalty is unsupported by law. What the respondent claims is an exception that in view of a certain term in the indenture of lease, to wit, Clause 2, the appellant is not entitled to demand and collect royalty from the respondent. This is nothing but enforcement of a term of a contract of lease. Hence, the question whether such contractual obligation can be enforced by the High Court in its writ jurisdiction. 9. Ordinarily, where a breac....
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....t petition was filed challenging the revision of rates of royalty for two different periods. Rejecting this petition as not maintainable, a Division Bench of the High Court held that the complaint of the petitioner is that there is violation of his rights under the contract and that such violation of contractual obligation cannot be remedied by a writ petition. That exactly is the position in the case before us. Therefore, the High Court was in error in entertaining the writ petition and it should have been dismissed at the threshold." 73. In the case of Barielly Development Authority and Another vs. Ajay Pal Singh and Others reported in 1989 (2) SCC 116 the Hon'ble Apex Court in paragraph nos. 20, 21 and 22 observed as under:- "20. Thus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the BDA have entered into the realm of concluded contract pure and simple with the BDA and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations....
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....d., [1981] 3 SCR 662." 74. In Noida Entrepreneur Association vs. U.P. Financial Corporation and Another reported in 1994 Supp (2) SCC 108 the Hon'ble Apex Court in paragraph nos. 2, 3 and 4 has observed as under:- "2. The Association filed a writ petition before the Allahabad High Court seeking a direction to the Corporation to adhere to the guidelines laid down by the IDBI in respect of interest and the penal interest. The High Court dismissed the writ petition. This appeal by the Association is against the judgment of the High Court. 3. According to the Association the Corporation is chargingfrom them the interest at higher rate than the ceiling provided under the guidelines issued by the IDBI. It is further alleged that the penal interest in the event of default in repayment, provided in the agreement was also over and above the norms laid down by the IDBI. 4. WE have heard learned counsel for the appellant. He hastaken us through the judgment of the High Court and the other material on record. The High Court declined to exercise its jurisdiction under Article 226 of the Constitution of lndia on the short ground that the appellant-petitioner was dis....
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....directed to advance a fresh loan to the writ petitioner to enable him to purchase a new truck; to enter into agreement for realization of the balance loan amount in accordance with law; to write off the remaining amount of Rs. 16,500/-and to order waiving of the interest till date etc. The order to say the least, was beyond the scope of the writ petition which was being considered by the High Court and beyond the jurisdiction of the court in a contractual matter. No doubt, while exercising its extraordinary jurisdiction under Article 226 of the Constitution, the High Court has wide power to pass appropriate order and issue proper direction as necessary in the facts and circumstances of the case and in the interest of justice. But that is not to say that the High Court can ignore the scope of the writ petition and nature of the dispute and enter the field pertaining to contractual obligations between the parties and issue such directions annulling the existing contract and introducing a fresh contract in its place." 78. Yet in the case of Rajasthan State Industrial Development (supra) the Hon'ble Apex Court in paragraph nos. 19, 20, 21, 22, 23, 24 has observed as under:- ....
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....n, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal. 22. Hence, discretion must be exercised by the court ongrounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for the issuance of the said writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings. In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the a....
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.... of a contract primarily by the joint intent of the parties at the time the contract so formed. It is not the intent of a single party; it is the joint intent of both parties and the joint intent of the parties is to be discovered from the entirety of the contract and the circumstances surrounding its formation. As is stated in Anson's Law of Contract, "a basic principle of the Common Law of Contract is that the parties are free to determine for themselves what primary obligations they will accept...Today, the position is seen in a different light. Freedom of contract is generally regarded as a reasonable, social, ideal only to the extent that equality of bargaining power between the contracting parties can be assumed and no injury is done to the interests of the community at large." The Court assumes "that the parties to the contract are reasonable persons who seek to achieve reasonable results, fairness and efficiency...In a contract between the joint intent of the parties and the intent of the reasonable person, joint intent trumps, and the Judge should interpret the contract accordingly." 79. Applying the said judgments in the present case this Court finds that ....
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....lly entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right. " 81. The judgment in the case of Suganmal (supra) was followed in the case of Salonah Tea Company Ltd. And Others vs. Superintendent of Taxes Nowgong And Others reported in 1988 (1) SCC 401 wherein in paragraph no. 6 and 7 the Hon'ble Apex Court has observed as under:- "6. In this case indisputably it appears that tax was collected without the authority of law. Indeed the appellant had to pay the tax in view of the notices which were without jurisdiction. It appears that the assessment was made under section 9(3) of the Act. Therefore, it was with out jurisdiction. In the premises it is manifest that the respondents had no authority to retain the money collected without the authority of law and as such the money was liable to refund. The only question that falls for consideration here is whether in an application under Article 226 of the Constitution the Court should have directed refund. It is the case of the appellant that it was after the judgment in the case of Loong Soong Tea Estate the cause of action arose. That judgment was passed in July 1....
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....ecting the GNIDA to refund the amount so deposited by the petitioner along with 18% per annum. The judgment in the case of Suganmal and Salonah Tea Company Ltd. (supra) are squarely applicable in the facts of the present case particularly when refund is being sought on the basis of certain deposits so made by the petitioner for discharging the contractual obligation. This Court is of the firm opinion that the present writ petition so instituted, seeking the solitary relief of mandamus without assailing any order, is not maintainable. 83. Learned Senior Counsel for the petitioner has lastly argued that the amount in dispute was deposited under protest and thus, the GNIDA is under legal obligation to refund the same. Sri Ramendra Pratap Singh, who appears for GNIDA has argued that for discharge of the contractual obligations the petitioner has deposited the said amount and the same cannot be refunded. The Court notices the fact that there is a marked difference between the deposit of amount under protest and protest against the very instruments which occasioned deposit of the said amount. In the present case in hand, the entire pleadings centers around the deposit of amount under ....
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....kruptcy Code- 2016 grants limited protection to the petitioner (auction purchaser) while allowing it to step into the shoes of the Corporate Debtor but in order to the lessee of the principle lessor (GNIDA) the petitioner has to honor the commitments and discharge its contractual obligation as embodied in the lease deeds, Transfer Memorandum and Sale Certificate. (c). The conduct of the petitioner also dis-entitles it to be granted relief under the equitable jurisdiction as the petitioner has approbated and reprobated at the same time as on one hand it seeks to become a lessee while being put in possession for enjoying the immovable assets of Corporate Debtor but on the other hand it wriggles and resiles from the contractual obligation. (d). The words so employed in the Certificate of Sale Deed dated 11.09.2019 being "AS IS WHERE IS", "AS IS WHAT IS", "WHATEVER THERE IS" AND "NO RECOURSE" read with the Transfer Memorandum dated 24.12.2020 so executed between the petitioner (auction purchaser) and GNIDA as well as the Sale Certificate dated 30.07.2021 itself creates contractual obligation upon the petitioner to honor the commitments and to discharge the obligations....
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....ल 270201 वरà¥à¤—मीटर à¤à¥‚खणà¥à¤¡ संखà¥à¤¯à¤¾ 66 बà¥à¤²à¤¾à¤•- Udyog Vihar वासà¥à¤¤à¤µà¤¿à¤• कà¥à¤·à¥‡à¤¤à¥à¤°à¤«à¤²- 270201 | सैकà¥à¤Ÿà¤° - Ecotech-II, वरà¥à¤—मीटर अंतरक के पकà¥à¤· में M/s Moser Baer अंतरिकी के पकà¥à¤· में M/s Palika India Ltd authorised- Anil Kohli Towns LLP authorised -Ashish Jain पिता/पति का नाम- Ramesh | पिता / पति का नाम Dileep Kumar | | Chandra Kohli अंतरक का पता K. Jain अंतरिकी का पता A-3 SF G. Marg Cannaught place New House No 66 Bihari Nagar Delhi Ghaziabad उप....
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....पबनà¥à¤§à¥€ के विरà¥à¤¦à¥à¤§ किये गये निरà¥à¤®à¤¾à¤£ कारà¥à¤¯ के फलसà¥à¤µà¤°à¥‚प समसà¥à¤¤ वयितà¥à¤µ सà¥à¤µà¤¤à¤ƒ ही अंतरिकी में निहित समà¤à¥‡ जायेंगे। 7. à¤à¥‚खणà¥à¤¡ हसà¥à¤¤à¤¾à¤¨à¥à¤¤à¤°à¤£ के बाद à¤à¥€ कोई देयता (जैसे परीमियम / लीज / अतिरिकà¥à¤¤ पà¥à¤°à¤¤à¤¿à¤•à¤° आदि की गणना समà¥à¤ªà¤°à¥€à¤•à¥à¤·à¤¾ के अधीन है) बनती हà¥....
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....या जाता है तो अंतरिकी बढी हà¥à¤¯à¥€ धनराशि को जमा करने हेतॠबाधà¥à¤¯à¤•à¤¾à¤°à¥€ होगा। 10. अंतरिकी दà¥à¤µà¤¾à¤°à¤¾ उकà¥à¤¤ औदà¥à¤¯à¥‹à¤—िक à¤à¥‚खणà¥à¤¡ का उपयोग औदà¥à¤¯à¥‹à¤—िक योजना के अनà¥à¤¯ पà¥à¤°à¤šà¤²à¤¿à¤¤ नियम निरà¥à¤¦à¥‡à¤¶à¥‹à¤‚ के अनà¥à¤¸à¤¾à¤° न करने की दशा में आवंटन निरसà¥à¤¤à¥€à¤•à¤°à¤£ हेतॠवाà¤à¤›à¤¿à¤¤ à¤....